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JSTOR helps people discover, use, and build upon a wide range of content through a powerful research and teaching platform, and preserves this content for future generations. JSTOR is part of ITHAKA, a not-for-profit organization that also includes Ithaka S+R and Portico. For more information about JSTOR, please contact email@example.com. 114 HAMMOND v. HUSSET. Supreme Judicial Court of New Hampshire. HAMMOND v. HDSSEY. The confidence induced by undertaking any service for another, is a sufficient legal consideration to create a duty in the performance of it. The defendant, being the teacher of a high school, undertook, at the request of the school committee, to examine candidates for admission to said school as scho- lars therein, and truthfully to report to the committee concerning their qualifica- tions. The plaintiff submitted himself to such examination, and was found pro- perly qualified ; but the defendant maliciously, deceitfully and falsely reported to the committee that the plaintiff was not so qualified ; by reason whereof the plain- tiff was excluded from the high school and deprived of its benefits. Held, that the plaintiff might maintain an action on the case against the teacher to recover his damages, occasioned by reason of such false and malicious report. Case by Charles B. Hammond against Thomas W. H. Hussey. The plaintiff's declaration was as follows : — In a plea of the ease for that at said Nashua, on the 13th day of April 1869, the defendant being the principal and teacher of the high school of the school district in said Nashua, under the authority and by the direction of the school committee of said district, was then and there employed to inquire into the qualifi- cations of certain of the scholars of said district, to be retained in said school as scholars therein, and truthfully to make report thereof to said committee; and the plaintiff, being one of said scholars, and being a scholar in said school, was then and there examined by the defendant as to his qualifications to be retained in said school as such scholar ; and the defendant, with the intent wrongfully to deprive the plaintiff of the benefits of instruction in said school, and unjustly and unlawfully to exclude him as a scholar therefrom, maliciously, deceitfully and falsely reported to said committee that the plaintiff was not entitled to be retained in said school as a scholar therein, because upon said examina- tion he was not found qualified, according to the standard fixed upon by said committee for such retention in said school, when in truth and in fact he was so qualified, and upon said examina- tion approved and exhibited himself to be so qualified according to said standard ; by reason of which malicious, deceitful and false report of the defendant, the plaintiff was wrongfully ex- cluded from said high school, and unjustly deprived of the benefits and advantages of said school, and of the teachings and instruc- HAMMOND v. HUSSEY. 115 tions bestowed upon and given to the pupils therein, to wit, from said 13th April 1869, hitherto. And the plaintiff avers, that afterwards, to wit, on said 13 th day of April 1869, he attended said high school, and claimed to be received as a scholar therein, but the defendant wrongfully and unjustly excluded him therefrom, and refused to receive him as a scholar therein, and to give him the benefit of the instruc- tions and teachings of said high school. To this declaration there was a general demurrer which was joined, and the questions thus raised were reserved for the consideration of this court. A. W. Sawyer, for the defendant. Q-eo. Y. Sawyer £ Sawyer, Jr. (with whom were Barrett $ Atherton and Morris $■ Stanley), for the plaintiff. Foster, J. — The substance of the plaintiff's declaration is, that the school committee employed the defendant to examine candi- dates for admission to the high school, and to report upon their qualifications ; that the defendant voluntarily undertook to make such examination ; that he examined the plaintiff, and found him to possess the requisite qualifications ; but, with intent wrong- fully to exclude the plaintiff from the school and to deprive him of its benefits, maliciously and falsely reported to the committee that he was not qualified ; and by reason of this malicious and false representation the plaintiff was excluded from the school and lost its benefits. The declaration, therefore, charges upon the defendant a wilful and positive deceit and fraud ; and the suit is placed upon the general ground, that where one party sustains an injury by the malfeasance of another, the sufferer may maintain an action against the wrongdoer for redress. The defendant contends, that upon this declaration no suit can be maintained, because, assuming the allegations to be true, there is no contract, express or implied, between these parties, and without privity of contract there can be no liability. It is true that there was no express contract between the par- ties, and that the defendant acted in the performance of no public duty, nor of any obligation to the plaintiff. It is also true that the plaintiff was under no obligation to submit himself to the defendant for examination. 116 HAMMOND v. HUSSEY. But the plaintiff contends that, notwithstanding the acts of both parties were voluntary, still, the undertaking of the defend- ant to examine the plaintiff, and the plaintiff's submission of himself to that examination, created and established between them a contract by implication of law; and that such being the case, the defendant was under obligation, notwithstanding his work was gratuitous, to perform his undertaking with ordinary care and diligence, — to make examination of the plaintiff in good faith, and truthfully to report the result to the committee. It may be doubted whether these considerations necessarily enter into the present inquiry. The case does not rest upon a charge of negligence nor of misfeasance at all ; nor even of mal- feasance in the performance of any duty imposed by law or required by the terms of a contract ; but the declaration charges a positive and wilful false representation, deceit and fraud, where- by the plaintiff received damage. It is of the character of a declaration in slander, and would seem to be governed by the principles applicable to such a case. And although it may be said that the voluntary relationship which the parties assumed placed them in privity of contract, so that for negligence in the performance of the defendant's under- taking, d fortiori for fraud concerning it, he would he liable in damages in this action, still it may be seriously questioned whe- ther the alleged fraud and deceit, though perhaps connected with contract, by implication of law, is necessarily affected by, or at all dependent upon, the existence of such contract. What difference does it make whether the defendant, in the perpetration of a malicious fraud and falsehood, such as the de- murrer admits, violated an express or an implied contract, or any duty resulting from his relation either to the plaintiff or to the school committee ; or whether, as a mere stranger in law, he achieved the wrong and caused the damage ? Does not the gene- ral and simple rule apply, that where a party sustains an injury by the wilful wrong of another, the sufferer may have his action against the wrongdoer ? See Mayor of Albany v. Cunliff, 2 Comst. 180 ; Pasley v. Freeman, 3 Term 51 ; s. c, 2 Smith's L. C. 137, 138 ; Willink v. Vanderver, 1 Barb. 599 : Watson v. Poulson, 7 Eng. L. & Eq. 585 ; Salem Bank v. Gloucester Bank, 17 Mass. 1. But, without placing the decision of the questions before us HAMMOND v. HDSSEY. 117 upon these grounds, we have no difficulty nor hesitation in dispos- ing of them by the application of the principles so well settled in Coggs v. Bernard, 2 Ld. Raym. 909 ; 1 Smith's L. C. *82. As all lawyers know, it was there held that " if a man under- takes to carry goods safely and securely, he is responsible for any damage they may sustain in the carriage through his neglect, though he was not a common carrier, and was to have nothing for the carriage." The analogy is obvious, and the principle evolved, and by the application of which this case is to be determined, is, that the confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it : Notes to 1 Smith L. C. 254 ; Wilkinson v. Coverdale, 1 Esp. N. P. Rep. 74 ; Doorman v. Jenkins, 2 Ad. & E. 256 ; 1 Pars. Con. 5th ed. 447, and note w. By this rule a gratuitous and voluntary agent, who has no public or official duty to perform, but who, nevertheless, under- takes gratuitously to do a particular service requiring the trust and confidence of another, though the degree of his responsi- bility is greatly inferior to that of a hired agent, is yet bound not to be guilty of gross negligence. Professor Parsons expresses the rule in more broad and gene- ral terms thus : " If a person makes a gratuitous promise, and then enters upon the performance of it, he is held to a full exe- cution of all he has undertaken." It is unnecessary to endorse so general a proposition without qualification or limitation ; but it is sufficient to hold that if a voluntary agent, without compensation, is accountable for the consequences of his gross negligence, much more should he be held answerable for wilful and malicious fraud and wrong in con- nection with his assumed undertaking. Questions involving the principle under consideration seldom arise except in the case of bailments, but the principle is broad enough to include the subject of the present inquiry. The demurrer is overruled.